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Mark McDonnell, a retired Multnomah County prosecutor, said the marijuana legalization initiative headed to voters this fall is flawed. “I don’t support marijuana legalization, but it’s a practical reality,” he said. “If it’s going to be legalized, it should be strictly regulated. This doesn’t do that.”
(Beth Nakamura/The Oregonian)

Mark McDonnell, former chief of the drug unit at the Multnomah County District Attorney’s Office, and Norm Frink, former chief deputy district attorney, said marijuana legalization is inevitable, but New Approach Oregon's plan is deeply flawed.

View full sizeNorm Frink, a former chief deputy Multnomah County district attorney, said if New Approach Oregon's marijuana legalization initiative passes this fall, the state will have a "real debacle" on its hands.Ben Brink/The Oregonian

The initiative would allow adults 21 and older to possess up to 8 ounces of marijuana. The recreational retail market would be overseen by the Oregon Liquor Control Commission.

"I would vote against it and I would urge anyone I come in contact with to vote against it," said McDonnell.

McDonnell slammed the initiative for allowing people to possess too much pot and grow marijuana at home and for failing to set a standard for impaired driving. He pointed to Washington's law, which establishes impaired driving standards and outlaws growing recreational marijuana at home, as a better model.

“I don’t support marijuana legalization, but it’s a practical reality,” McDonnell said. “If it’s going to be legalized, it should be strictly regulated. This doesn’t do that.”

A New Approach Oregon spokesman, Peter Zuckerman, said via email that the two retired prosecutors were consulted as the initiative was drafted, "even though we knew they would not be happy with anything we came up with."

Frink said the proposal fails to adequately address impaired driving. For instance, he said police should be allowed to get a blood sample in suspected impaired driving cases without having to get a search warrant.

Under Oregon's “implied consent law,” police in Oregon may obtain a urine sample from suspected impaired drivers, but those tests don’t help law enforcement determine how recently a driver consumed marijuana, said Frink.

He said the initiative should provide additional funding for the state’s crime lab to perform marijuana-related tests in impaired driving investigations and additional funds for the state to prosecute those cases.

“If you had a properly funded program, you could effectively get this evidence and it could be introduced along with other evidence showing the person was impaired,” Frink said.

Frink also criticized the New Approach Oregon proposal for not addressing the dosing and packaging of marijuana-infused foods, a popular part of the market. Colorado has had several high-profile instances of people over-ingesting marijuana-infused foods.

“If Safeway pharmacy was selling a drug and they just gave it to people and they didn’t say how much to use or how much THC was in it and they were having psychotic episodes, that would be a major scandal,” said Frink. “And yet that is what we are about to embark on with this measure.”

Dave Kopilak, a Portland lawyer who helped write the initiative, said advocates met with Frink and McDonnell and both men were influential when it came to establishing possession limits. Initially, Kopilak said, advocates wanted a 24-ounce possession limit. The prosecutors pushed for a much lower limit. New Approach Oregon’s initiative caps marijuana possession at 8 ounces.

“It’s better than before we met with them, but they (New Approach Oregon) didn’t do it to placate us,” said McDonnell. “They did it to avoid some of the arguments against the measure.”

Frink said he appreciated New Approach Oregon's willingness to listen to his concerns before finalizing the proposal and to make what he described as "limited changes," but said the final initiative doesn't go far enough to protect public safety.

McDonnell added that one of the advocates’ key selling points – that legalized marijuana will raise tax revenue – won’t pan out since the initiative allows home marijuana cultivation.

“You are not going to make any tax revenue if people can have private grows and eight ounces,” he said. “That underground economy is going to continue.”

McDonnell said reservations about the initiative prompted them to push lawmakers earlier this year to get involved in the process. But that effort went nowhere.

Zuckerman, in an email to The Oregonian, said the organization favors field sobriety tests over "unreliable, unscientific and arbitrary blood tests" when it comes to impaired driving. He said the initiative includes a provision that mandates the liquor control commission to keep up with latest methods for determining marijuana-related impaired driving.

He said the proposal also allows testing and labeling requirements for marijuana-infused products.

"We expect Oregon would follow the lead of the Oregon Health Authority’s medical dispensary program and the rules and regulations being implemented in Washington and Colorado, where labeling and testing are happening," he wrote in the email.